Neoliberal Civil Procedure

12 U.C. Irvine Law Review 471 (2022)

57 Pages Posted: 27 Mar 2021 Last revised: 7 Mar 2022

See all articles by Luke Norris

Luke Norris

University of Richmond School of Law

Date Written: February 26, 2021

Abstract

This Article argues that the current era of U.S. civil procedure is defined by its neoliberalism. The Supreme Court has over the past few decades reinterpreted the Federal Rules of Civil Procedure in ways that have made it more difficult for citizens to bring and maintain civil claims. The major decisions of this new era—in areas as diverse as summary judgment, pleading, class actions, and arbitration—exhibit neoliberal hallmarks. They display neoliberalism’s tendency to naturalize existing market arrangements, its focus on efficiency and obscuring questions of power, its reduction of citizens to consumers, and its attempt to analyze government through the lens of market-modeled concepts. As the Court’s procedural decisions make it increasingly difficult for citizens to bring claims enforcing regulatory law—including antitrust, antidiscrimination, consumer protection, and worker protection laws—the Court’s neoliberal orientation lurks in the background and helps to explain procedure’s modern progression. In order to fully appreciate, critique, and potentially move beyond the current era of U.S. civil procedure, it is important to understand the neoliberal logic that drives it, as well as the logics and values it obscures and sidelines.

Keywords: civil procedure

Suggested Citation

Norris, Luke, Neoliberal Civil Procedure (February 26, 2021). 12 U.C. Irvine Law Review 471 (2022), Available at SSRN: https://ssrn.com/abstract=3793658 or http://dx.doi.org/10.2139/ssrn.3793658

Luke Norris (Contact Author)

University of Richmond School of Law ( email )

203 Richmond Way
Richmond, VA 23173
United States

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